Grievance Case Summary - G-359

A Code of Conduct investigation was initiated against the Grievor after a complainant alleged that the Grievor stole a one hundred dollar bill from him during an arrest. The Grievor admitted that he had the money, but he stated that he had not stolen it from the suspect. He had taken it from the suspect's pocket with the rest of his belongings and it had fallen into his car. Later, when he found the bill, he put it in his pocket intending to return it later in the day. Before he did, his superior questioned him about the complaint. At first the Grievor did not tell his superior that he had the money because he was afraid that he would think that he stole it. However, minutes later, the Grievor told him and handed over the bill.

On June 11, 2004, a Notice of Intent to Stop Pay and Allowances was signed and on June 15, 2004, it was served on the Grievor. The Commanding Officer found that the Grievor had the money in his possession, and had initially lied about it to his superior. The Grievor could not explain how the bill ended up in his vehicle; why he did not treat it as an exhibit if he thought that it was counterfeit; and had also admitted to being untruthful to his superior. On September 10, 2004, the Respondent ordered the stoppage of the Grievor's pay and allowances.

The Level I Adjudicator denied the grievance against the Order, concluding that clear involvement was shown; that stoppage of pay and allowances is available when a member is suspected of contravening the Code of Conduct; that the Force policy on this issue is sound; and the RCMP has the authority to suspend pay and allowances.

At Level II, the Grievor reiterated a number of arguments previously made. On May 12, 2005, the Respondent submitted representations on the merits of the grievance, noting that there had not been an opportunity to do so before the decision was made by the Level I Adjudicator.

The Committee found that the Grievor has standing to present the grievance and has respected the time limits. It was also appropriate to consider the Respondent's submissions at Level II. They had been shared with the Grievor, who had been given the chance to respond. This would also satisfy fairness requirements that were not respected at Level I, and avoid further delay.

Reiterating previous recommendations, the Committee found that Treasury Board engaged in an unlawful sub-delegation of regulation-making authority by leaving it up to the RCMP to establish the criteria under which stoppage of pay and allowances may be ordered. In 3300-04-002 (G-342), the Commissioner agreed with the Committee that on a case-by-case basis he has authority to consider whether the Regulations have force and effect, although he cannot make a general declaration of invalidity. He did not rule on the validity of the Regulations, because he had ordered a complete review of the RCMP Stoppage of Pay and Allowances Regulations and the related policy.

Given the Commissioner's position on the legality of the Regulations, the Committee addressed the merits of the grievance. The Committee found that there was no clear involvement. The fact that the Grievor had the complainant's money does not show that he was clearly involved in the offence of taking it without lawful justification. Also, there were conflicting versions, both of which may be possible, and a lack of clarity surrounding certain facts.

Citing previous a recommendation (3300-97-005 (G-202)) and D.10 of the RCMP policy which states that it shall not apply to summary convictions, provincial statutes or minor Criminal Code offences, the Committee also found that the allegations against the Grievor are not outrageous in a relative sense.

The grievance should be allowed.

The Commissioner rendered his decision in this matter, as sumarized by his office:

As he did in recent decisions, the Commissioner presumed that the RCMP Stoppage of Pay and Allowances Regulations were valid and decided the grievance on the merits. As for the issue of clear involvement, the Commissioner was unable to conclude, based on all the evidence on record, the ERC's report and considering the different definitions of the word "clear", that the criterion of clear involvement had been met in this case. Since this requirement must be met in order to invoke the stoppage of pay and allowances, the Commissioner allowed the grievance on this issue. In light of that decision, there was no need to address the remaining issues raised in the grievance. Furthermore, the Commissioner was informed that on January 6, 2006, the Chief Human Resources Officer had rescinded the order for the stoppage of the Grievor's pay and allowances. Accordingly, there was no need to consider a remedy.